2016-10-21

The French Constitutional Council gave its decision [FR] in response to the Priority Preliminary ruling on the issue of constitutionality (QPC in French) brought before it by Les Exégètes amateurs on hertzian surveillance.
Confirming our legal arguments [EN], the Constitutional Council found that article L. 811-5 of the Internal Security Code allowing hertzian surveillance was unconstitutional, since it was not subject "to any conditions, both procedural and substantive" and its "implementation" was not governed by "any safeguard".

Despite the fact that the Constitutional Council decided to delay the effective repeal of article L. 811-5 to fourteen months (December 31 2017), its decision rendered the article immediately void.

Therefore, from now on, the censored provisions cannot "serve as a foundation for measures of interception of communications, the collection of metadata or data seizure" in France and abroad. It thus seems that the only measures that can still be taken under the provisions of the article cannot be anything but in line with the right to privacy.

Furthermore, the Constitutional Council ruled that all measures taken on the basis of article L. 811-5 must be communicated to the Commission nationale de contrôle des techniques de renseignement (CNCTR)1 for oversight (inspite that such oversighting tasks should have been granted to another legal authority, provided with structural safeguards and sufficient resources to guarantee its efficiency). Since the Constitutional Council doesn't provide further information regarding the measures based on article L. 811-5 that could survive those limits, we hope that the CNCTR will provide us with more practical details in its annual report to come.

The decision of the Constitutional Council is a resounding success, since it implies to end measures hindering privacy and fundamental liberties, declared as inconstitutional and disproportionnate. By depriving intelligence services of a legal blanket exemption permitting all kinds of illegal surveillance measure, this decision acts as the first victory in the litigation brought by the "Exegetes" against the Intelligence law and its implementing decrees. It testifies that a precise and obstinate work can change the law, even after its regrettable vote. This is an incentive to keep the battle going, in order to safeguard the protection of civil liberties and the rule of law!